Music Management: Effectively (and Legally) Unleash the Power of Music

By LAWRENCE BISCONTINI, M.A.

From the gym floor to the group fitness studio, music is an essential component of the exercise experience. Group fitness instructors use music to manipulate intensity, create a mood, and increase motivation and overall well-being. And club managers understand that choosing the right music to play over the sound system can either enhance members’ workout experiences or have them running for the exits. But knowing how to use music to create specific moods or environments is only part of the story—fitness professionals and club managers must also be aware of the legalities involved in using licensed music, and make a conscious effort to use legal music from legal sources. The following article looks at both issues, and explains how to legally maximize the full potential that music can offer both class participants and club members.

The Law

Fitness Music Companies Play by the Rules

Companies that produce music compilations specifically for use in a class or gym setting heed strict music laws and licensing requirements. “When a song is current and popular,” explains Lashaun Dale, a creative consultant to Equinox Fitness Clubs, “instructors want to be able to play that song in class.” For a music company to be able to use any original song in a fitness release, a license fee is negotiated with the record label that owns the song. “Such a fee could exceed tens of thousands of dollars per song, because today’s popular singers are expensive,” says Rich Hart of Dynamix Music. “Furthermore, some labels will not even grant licenses for their more popular artists. Consequently, we produce legal songs in which we hire talented artists to make a duplication of the original, known in the music industry as a cover.”

The fees to produce these musical “covers” are less expensive than licensing the original artist because they are paid specifically for fitness music involved in a specific compilation. These fees compensate the producer of the cover, as well as the writers and publishers of the original song. When a cover song is used in more than one compilation or as background music on a fitness DVD or television show, a separate license is secured from the music publisher, and a license is drafted with the master rights owner of that “cover” recording.

Music companies generally pay an initial “production fee” to the producer who is making the cover, and potentially an additional royalty once a determined number of CDs are sold. The company also must pay “mechanical royalties” for each song on the play list each time a CD is sold. As a result, they must account for each physical and downloaded CD sold. Michael Pipitone, founder of Yes! Fitness Music, says that these fees add up quickly. “For each CD or download we sell, we pay approximately $.09 per song to the writers and musical publishers. And then we have to pay royalties to our artists and producers who contributed to the productions.” Pipitone notes that these fees to do not include the cost of the artwork, printing, editing, plastic casing or packaging. Hart says that a popular CD can cost as much as $20,000 to make before one sale is even made.

It is not uncommon to hear instructors say they would be willing to pay more for a CD that included all original artists, but even if the costs were reasonable, it often isn’t possible. “What many do not realize,” explains Pipitone, “is that major labels generally don’t license their major artists like Britney Spears and Whitney Houston for fitness releases.” Additionally, says Pipitone, “If you are seeing original pop artists on fitness CDs, it is safe to say that the recordings were not licensed from the copyright holders. Therefore, permission has not been granted to make CDs or downloads or even to play the music in fitness classes. Some international companies offer releases with original artists, but these are licensed only for distribution within those licensed territories and in countries where they have reciprocal agreements and are not to be sold in the USA.”

As a result, most professional, legal music companies in the United States, including Dynamix Music, Muscle Mixes Music, Power Music, and Yes! Fitness Music, feature “covers” in their CD compilations.

Is it Legal to Play Music in the Club?

Legal licensing involves paying fees to the three major music public performance rights organizations—ASCAP, BMI and SESAC—for “blanket licensing” fees to play music in public spaces and common areas. The actual fees for each club or chain depend on specifics such as square footage of the club, total number of members, total number of speakers throughout the club, and the group fitness offerings. Interestingly, each of these aforementioned companies calculates specific club fees slightly differently. Facilities or franchises where music plays an integral role (e.g., Curves) can negotiate set amounts with ASCAP, BMI or SESAC, based on their general club statistics.

This license that the clubs pay is called a “public performance license,” and is a fee that may apply to any business using music, whether it is the music in the background of the doctor’s office, music while you are waiting “on hold” on the telephone, background music in restaurants, music played in nightclubs, or music in the cinema before the movie starts. If any commercial entity benefits from the public performance of musical compositions, the writers have to be compensated, and BMI, ASCAP and SESAC collect these fees. “Interestingly,” says Hart, “music from a fitness music company or from any other source that is played in a public setting like a health club or fitness facility is subject to paying this fee, even music [that has been] legally purchased and downloaded.”

Ideally, club management pays these fees to protect all of their instructors. After all, says Pipitone, “if public performance fees were somehow included in the price of the CD, it would not be fair for the part-time instructor who only teaches an occasional class in a one-room club [to be paying the same fees as a] full-time instructor teaching multiple classes a day with the same CD.” In other countries, instructors are responsible for paying these fees directly to the performing rights organizations. Fortunately, this is not currently the case in the United States.

In Australia, recent legislation of copyright tribunals mandates that fees be paid for both performance (as in the United States) and to the artist. Currently, no fees go to the artists under U.S. law, but all eyes are on this Australian legislation, which may set the stage for similar laws in the U.S. Canadian tribunals are also considering passing laws modeled after the new Australian legislation.

Do These Restrictions Apply to Fitness Professionals?

In addition to purchasing legal compilations from fitness music companies, many instructors occasionally download songs, playlists and albums from popular online music sites. However, the same legal restrictions that clubs must adhere to also apply to the fitness professional. According to iTunes’ terms of service, for example, which must be agreed to before purchase, the buyer is “authorized to use the Products only for personal, noncommercial use.” Strictly speaking, downloaded music is covered under the same private-use restrictions that are common to other forms of media, such as DVDs, and should not be used in a commercial setting (i.e., group fitness class).

The Lyrics

While the legal aspects of music may seem dry, the dynamic potential of music certainly is not. Even when the choreography remains unchanged from class to class, altering the music—with its wide range of styles, rhythms, percussions, lyrics, languages, genres and tempos—can completely transform the feeling of any fitness experience.

Dr. Len Kravitz, program coordinator of exercise science and researcher at the University of New Mexico at Albuquerque, believes music can be an effective motivator for all generations and populations. In a study published in 2007, he cited four primary reasons why music can have such a positive effect on exercise performance (Harmon and Kravitz, 2007):

Of course, choosing music that is appropriate for both participants and the activity is essential to maximizing these benefits.

Choose Wisely

Choosing the right music for each experience is the first step. Innovative instructors use music from around the world to help bring other countries and cultures into the studio. Petra Kolber, spokesperson for Yes! Fitness Music, cautions against choosing music based solely on personal taste and preference. “Just because a certain CD resonates with us, it may not always cross over to our students,” says Kolber, “so we have to think about the demographics of our students. I say ‘listen with your eyes’ because you will know right away if a CD you have chosen will be a top hit with your students by the energy in the room.”

Music should complement the movement at hand. Obviously, heavy-metal music is more likely to distract from, instead of contribute to, the experience of a Latin-based dance class. If a class is cueing-intensive, Lisa Wheeler, national creative project manager for Equinox, suggests choosing instrumental music “so the vocals do not to compete with your voice and cueing, at least until everyone [becomes] familiar with the format.”

Master the Music

Once you’ve chosen the appropriate music for your class or workout experience, take the time to listen to the entire CD and make sure the songs match your plans for choreography or changes in intensity. Wheeler believes that one of the biggest mistakes an instructor can make is not listening to an entire CD before using it in class. “You might find there is a dip in energy two-thirds of the way into the CD that doesn’t match your intensity push,” says Wheeler.

Deborah Puskarich, group exercise director of the Cooper Aerobics Center at Craig Ranch in McKinney, Texas, believes that instructors should work as “verbal disc-jockeys, familiar enough with the lyrics of songs to be able to incorporate them into class, and even weave themes around the playlist on a given CD. When you are ready to change your playlist, that’s just about the time you are just mastering it, so hold onto it for a few more classes and show them your mastery of your music.”

Putting it all Together

Music has the potential to increase motivation and add a spark of fun and magic to even the most grueling workouts. The ability to choose legal and appropriate music requires professionalism and practice, and is an important part of providing an effective workout experience for all participants.

Lawrence Biscontini, M.A., ACE 2002 Group Fitness Instructor of the Year, has been incorporating music into his classes since 1983, and still loves to use the magic of music as a Mindful Movement Specialist and Creative Consultant. He is particularly grateful to Dynamix and Yes! Fitness Music for their assistance in this article. Find Lawrence at www.findlawrence.com and at the 2010 ACE Fitness Symposium.

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